Customs, Excise and Gold Tribunal - Bangalore
Ruchi Soya Industries Ltd. vs The Commissioner Of Customs, Central ... on 13 February, 2007
Equivalent citations: 2007(118)ECC466, 2007ECR466(TRI.-BANGALORE)
ORDER T.K. Jayaraman, Member (T)
1. This appeal has been filed against the OIA No. 21/2006(V)CH dated 31.05.2006 passed by the Commissioner of Customs, Central Excise and Service Tax (Appeals), Visakhapatnam.
2. The appellants imported RBD Palmolin and paid duty at the rate of 30%. However, in terms of Customs Notification No. 36/96 dated 22.07.96, the duty was reduced to 20%. The entire assessment was provisional. In view of the reduction in duty, the appellants were entitled to get the refund to the tune of Rs. 41,16,646/-. They applied for the refund on 30.08.1996. Revenue issued Show Cause Notice for rejection of the refund claim on account of unjust enrichment. The original authority, in his order dated 02.06.2000, had rejected the refund claim on the ground that the appellants had passed on the duty burden to the buyer. Therefore, he has reasoned that the appellant is not entitled for the refund. The Commissioner (Appeals), in the impugned order, has upheld the OIO.
3. S/Shri G.L. Rawal, the learned Senior Advocate and Shri Rajesh Rawal, the learned Advocate who appeared for the appellant, urged the following points:
(i) In the present case, the imported goods were bonded. When the goods were cleared from the warehouse, the rate of duty was reduced. However, based on the assessment of Into Bond Bill of Entry at the time of clearance, the appellants paid the duty at a higher rate. Moreover, the entire assessment was provisional. Prior to 25.06.1999, the concept of unjust enrichment was not applicable to finalisation of provisional assessment. In other words, the amendment to Rule 9B(5) was brought into effect only from 25.06.1999. The Apex Court, in the case of CCE, Chennai v. T.V.S. Suzuki Ltd. as , has upheld the Tribunal's view that unjust enrichment will not be applicable to cases of finalisation of provisional assessment prior to 25.06.1999. Further, he relied on the following case-laws.:
a. Forbes Gokak Limited v. CCE, Belgaum a. Kinetic Motors Co. Ltd. v. CCE, Indore 2000 (40) RLT 450(CEGAT) b. Escorts Yamaha Motors Ltd. v. CC, New Delhi
4. The learned JDR, Shri Anil Kumar pointed out that in the present case, the appellants had clearly admitted that the duty burden has already been passed on to the buyer. Therefore, the refund is hit by unjust enrichment.
5. We have gone through the records of the case carefully. In the present case, the refund arises on account of the finalisation of provisional assessment prior to 25.06.1999 when Rule 9B(5) was amended. The Tribunal, in the case of CCE, Chennai v. T.V.S. Suzuki Ltd. 2001 (135) ELT 140(Tri.-Chennai) has taken a view that the provisions of unjust enrichment in respect of finalisation of provisional assessment would not be applicable prior to 25.06.1999. This view of the Tribunal has been upheld by the Hon'ble Apex Court as . Therefore, the appellants are entitled for the refund in terms of the above decisions. Hence, we allow the appeal with consequential relief, if any.
(Operative portion of this Order was pronounced in open court on conclusion of hearing)